Snodgrass ex rel. All Other Persons Similarly Situated v. Bob Evans Farms, LLC

• Decision Date: 18 March 2015
• Docket Number: Case No. 2:12-cv-768
• Parties: DAVID SNODGRASS, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. BOB EVANS FARMS, LLC, Defendant.
• Court: U.S. District Court — Southern District of Ohio

DAVID SNODGRASS, Individuallyand on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. BOB EVANS FARMS, LLC, Defendant.

Case No. 2:12-cv-768

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

March 18, 2015

Judge Peter C. Economus

Magistrate Judge King

MEMORANDUM OPINION AND ORDER

This matter is before the Court for consideration of Plaintiffs' Motion for Partial Summary Judgment Regarding the Method of Calculating Damages (ECF No. 148), and Defendant Bob Evans' Cross Motion for Summary Judgment (ECF No. 150).

I. Background

This is a collective action brought pursuant to the provisions of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. ("FLSA"). Named Plaintiff David Snodgrass¹ is joined in this action by opt-in Plaintiffs Amanda Kirchner, Keith Sutton, Barbara Gibbs, Brent Neff, Jennifer Britt, Jennifer Curtis, Brett Kubin, Clifford Britton, Annquance Williams, and Jackie Franklin (collectively "Plaintiffs"). Snodgrass, on behalf of himself and others similarly situated, claims that Defendant Bob Evans Farms, LLC ("Bob Evans")² failed to pay him overtime wages as required by the FLSA while he was employed by Bob Evans as an assistant restaurant manager ("AM"). This type of action is referred to as a "misclassification" case, wherein the plaintiff alleges that he was misclassified as exempt from the overtime provisions of the FLSA.

On December 20, 2013, this Court conditionally certified a collective class "consisting of all persons either employed or previously employed as assistant managers by Defendant Bob Evans Farms, LLC at any time from August 27, 2009 to the present." (ECF No. 72 at 10.)

Plaintiffs and Defendant Bob Evans have filed cross motions for partial summary judgment. The motions request that this Court determine the proper method of calculating overtime damages for misclassifying assistant managers as exempt from the FLSA overtime requirement.

II. Factual Record

The parties provide the following facts as evidence supporting their cross motions for summary judgment.

1. Defendant Bob Evans

Bob Evans' provides facts from Bob Evans' corporate documents that discuss the number of hours AMs worked. This evidence consistently shows that AMs were paid a set salary as exempt employees. John Carothers (Bob Evans's VP-Field Human Resources) testified that all AMs are paid on a salary basis. John Carothers Dep. 38:18-20. John Carothers testified:

Q: Is there a minimum number of hours that assistant managers are expected to work each week?

A: Until the work's done.

Carothers Dep. 41:24-25; 42:1-4. Similarly, corporate representative Natalie Ward testified that, "number of hours per week will be determined by the individual circumstances of each restaurant." Ward Dep. 80:11-21; 79:13-16. Region Vice President Jason Pruss testified that, "I have always explained that, you know, the salary covers all the hours you work." Jason Pruss Dep. 82:9-11. Pruss explained that "[t]he Manager schedules vary. I think 45 to 50 is pretty much the standard what our managers work, but it varies from week to week from restaurant torestaurant." Pruss Dep. 81:19-23 ("[T]he schedule does vary from week to week, it is typically, you know, there is a range, many factors affect that."). Director of Concept Implementation Michael Erwin testified that the Assistant Managers are "salaried managers and they're paid for all hours worked." Michael Erwin Dep. 14:22-23. He further testified that "managers are paid a salary for all hours work, that they're paid to manage in the restaurants." Erwin Dep. 15:7-9; 26:24-25, 27:1-13.

Bob Evans provides deposition testimony from Plaintiffs regarding AMs' salary. The testimony reveals that AMs were paid the same regardless of hours worked. David Snodgrass testified:

Q: You were paid a salary, correct?

A: Yes.

Q: All right. And you got the same salary each week that you worked?

A: Yes.

Q: And it didn't matter how many hours you worked, you got the same salary?

A: Yes.

David Snodgrass Dep. 78:9-13.

Reginald Oliver testified:

Q: I understand that according to your testimony, John told you that you would be scheduled 45 to 50 hours a week. My question is you knew that you were going to be getting the same salary every week.

A: Well, to answer, yes.

Q: And you knew you were never going to get overtime?

A: Yes.

Reginald Oliver Dep. 58:17-24; 59:1. See also, Jennifer Curtis Dep. 99:10-19 ("Q: And you received that salary no matter how many hours you worked, right? A: Yes."); Debora Adams Dep. 76:22-24; 77:1 ("Q: And you got the same salary every week no matter how many hours you worked, correct? A: Exactly."); Bret Kubin Dep. 59:6-11 ("Q: And you received the same salary no matter how many hours a week you worked, right?" A: Correct."); Brent Neff Dep. 166:16-18 ("Q: And is it true that you got the same salary no matter how many hours you worked? A: Yes."); Deborah Smith Dep. 154:11-13 ("Q: Did you receive the same salary every week no matter how many hours you worked? A: Yes, sir.").

Bob Evans provided deposition testimony from Plaintiffs discussing their understanding that they would receive no overtime compensation. Plaintiff Bret Kubin testified:

Q: But you understood that no matter how many hours you worked, you would get the same salary, right? ***

A: I mean, yes. It was never going to be overtime pay. There was going to be - you are going to be a salary no matter how many hours you work you'll get that same pay.

Kubin Dep. 60:2-9. Other opt-ins similarly testified

Bob Evans provided deposition testimony from Plaintiffs that showed the actual number of weekly hours worked varied. David Snodgrass testified to 50-50 hours. David Snodgrass Dep. 159:16-20. Brent Neff testified to 55-65 hours. Brent Neff Dep. 31:10. Bret Kubin testified to 65 hours. Bret Kubin Dep. 77:2-8. Jennifer Curtis testified to 50 hours at the Fairmont location, 50-60 hours at the McKnight location, and 65-70 hours at the Bridgeport location. Jennifer Curtis Dep. 115:10-12; 134:10-15; 147:2-12. Debora Adams testified to 45-50 hours. Debora Adams Dep. 66:16-19. Debora Smith testified to 45-60 hours. Debora Smith Dep. 157:12-18. An opt-in Plaintiff in a Verified Response to Interrogatory testified to 55-60 hours. Verified Response to Interrogatory No. 13 (Exhibit 11).

2. Plaintiffs

The evidence consistently shows that AMs expected to work a regular schedule of 45-55 hours per week, and that AMs believed their salary was intended to cover 45 to 50 hours per week. Plaintiffs refer to provisions in Bob Evans' corporate documents and testimony of Bob Evans' corporate representatives that assert 45 to 50 hours as the number of hours AMs were expected to work. For example, on April 20, 2010, Bob Evans General Manager Bobbie Jo Zeigler issued a Management Conversation Sheet—a form for employee discipline—to AM Sheila Schmittle. See Exhibit A, Management Conversation Sheet. It said: "All levels of management is [sic] scheduled to work a 45 to 50 hour work week." Similarly, corporate Representative Natalie Ward testified that, "[a]ll levels of management must be scheduled for 45 to 50 hours per week." Exhibit D, Deposition of Natalie Ward, p. 78-79. Ms. Ward said: "It's my understanding that they are trained to know that they will work approximately 50 hours per week." Id. at 79.

Moreover, Bob Evans' manager handbook states: "All levels of management must be scheduled for 45 to 50 hours per week." See Exhibit 1, 2009 Management Handbook, p. 10; see also Exhibit 2, November 2011 Management Addendum, p. 7 (same). The following is an excerpt discussing schedules taken directly from Bob Evans Management Handbook:

MANAGEMENT SCHEDULES

The Bob Evans Restaurant Management work week is a flexible schedule, written by the General Manager and approved by the Area Director. It is the General Managers responsibility to ensure that their restaurant has adequate management staffing for each day. Schedules must be written so that General Managers allow themselves optimum time to develop managers and employees

When used properly, flexible scheduling allows managers to make personal plans and gives them the opportunity to enjoy time away from work that best fits their individual needs.

All levels of management must be scheduled for 45-50 hours per week. The number of hours per week will be determined by the individual circumstances of each restaurant.

? An "OPEN" schedule begins 45 minutes prior to the restaurant opening and is normally a 9 to 10 hour schedule.

? A "CLOSE" schedule starts 7 ½ to 8 ½ hours before the restaurant closes and is normally a 10-hour schedule

? A "SWING" schedule can be early or late and is normally a 10-hour schedule.

Exhibit 2, November 2011 Management Addendum, p. 7.

Plaintiffs provide deposition testimony that reveals AMs expected to work regular schedules of 45-50 hours per week. Plaintiff David Snodgrass testified that his regular schedule was consistent with the November 2011 Management Addendum articulating the 45-50-hour expected work schedule. See Exhibit 3, Deposition of David Snodgrass, pp. 159:12-14, 160:12-14, 161:1-9. Similarly, Plaintiff Debora Adams testified as follows:

A. [I]t was my understanding that as having the title of Assistant Manager, you worked 45 to 50 hours a week, that's what I was led to believe when I signed up to be an Assistant Manager and spoke with [Area Coach] Don Adams.

Q. And I understand that was your understanding of the schedule but I'm talking about your salary. You knew that you were going to get the same salary no matter how many hours you worked, right?

A. My salary was based on 45 to 50 hours a week. That is what I was told.

* * *

Q. Now, you said that you were told 45 to 50 hours. Was that from the handbook?

A. That was from the area coach and I believe it's in the handbook. I'm not a hundred percent sure that it was in the handbook [it was] but I do remember discussing the hours with Don Adams.

Q. Don Adams said that you would be typically scheduled

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